CM-11-09-206?Ill"...—ROUNDROCK,TEXAS
PURPOSE 1039014. PROSPOUTY
Item Caption:
Cm——of-Zoe
RECEIVED
City Manager Approval Form
OCT 12 2011
Consider execution of a Loan Agreement for Art in Public Places with Round Rock Area Arts Council and
artist, Larry Hullum, for the public art display in the Main Street Plaza.
Approval Date: October 14, 2011
Department Name: Parks and Recreation Department
Project Manager: David Buzzell
Assigned Attorney: May Gayle
Item Summary:
This item is for a loan agreement between the City, RR Area Arts Council (RRAAC) and the artist (Larry Hullum) for the public art
display in the Main Street Plaza. The agreement states the responsibilities of each party related to the public art. The City's
obligation is to provide a space for the public art display (art panels in Main Street Plaza), notify the artist and RRAAC of any
damage or vandalism, and coordination of the installation and removal of the art display. The City is not obligated to pay for the
art display, damaged caused to the art or removal of the art. Basically, the City is just providing the space for the RRAAC and
artist to display the public art piece. The City, in coordination with the RRAAC, will notify the artist when the art display needs to
be removed from the plaza.
No. of Originals Submitted: 1
Project Name: City Hall Plaza Improvements Project
Cost: $0.00
Source of Funds: Select Source Fund
Source of Funds (if applicable): Select Source Fund
Account Number:
Finance Director Approval: Cheryl Delaney
Date: 10/12/11
Department Director Approval:
Date: /0
**Electronic signature by the Director is acceptable. Please only submit ONE approval form per item. **
CIP ❑� ❑ Budget
N/A OK
I ❑
N/A OK N/A OK
Purchasing
El ❑
Accounting ❑� ❑
N/A OK
ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL
REV. 6/20/11
CITY OF ROUND ROCK
LOAN AGREEMENT FOR ART IN PUBLIC PLACES
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
COUNTY OF TRAVIS
KNOW ALL BY THESE PRESENTS:
That this Loan Agreement for display of artwork on City -owned property, referred to
hsirein as the "Agreement," is made and entered into on this the 2.2. day of the month of
te femb r , 2011, by and between the CITY OF ROUND ROCK, TEXAS, a
honfe-rule municipality whose offices are located at 221 East Main Street, Round Rock, Texas
78664, referred to herein as the "City," the ROUND ROCK AREA ARTS COUNCIL, a Texas
non-profit corporation whose offices are located at the Business Center Complex, 231 East Main
Street, Round Rock, Texas 78664, referred to herein as the "RRAAC," and
L ARD Y WIC kiln , whose offices are located at
P 0 86X (°Z, 8R/66S , Texas 764015 ,
referred to herein as the "Artist" and/or "Lender." This Agreement supersedes and replaces any
previous agreements between the named parties, whether oral or written, and whether or not
established by custom and practice.
RECITALS:
WHEREAS, City desires to agree to the display of certain privately -owned artwork on
City -owned property; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
mutually agree as follows:
1. AGREEMENT TO LEND; AGREEMENT TO DISPLAY
A. Lender hereby agrees to lend the artwork specifically described in Exhibit "A,"
attached hereto and incorporated herein by reference for all purposes, for display on City -owned
real property known as the Main Street Plaza located at 205 East Main Street, Round Rock,
Texas 78664.
B. City hereby agrees to the display of such referenced privately -owned artwork on
its property referenced herein in Section 1, such display to be in accordance with this Agreement.
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2. LENDER'S ACKNOWLEDGMENT OF DISPLAY HAZARDS; STANDARD OF
CARE; INITIAL CONDITION REPORTING
A. Lender hereby expressly acknowledges that publically displayed art is subject to
inherent deterioration and acts of vandalism, and Lender further expressly acknowledges and
agrees that neither City nor RRAAC shall be held responsible for same.
B. Lender hereby expressly certifies that the artwork described in Exhibit "A" is in
such condition as to withstand the ordinary strains of outdoor public display.
C. City shall afford the artwork described in Exhibit "A" a comparable standard of
care as it gives other personal property owned by the City. Lender hereby expressly
acknowledges and agrees that City shall have no responsibility for insuring the artwork described
in Exhibit "A" while same is being displayed on City -owned property.
D. At the time of on-site installation of the artwork described in Exhibit "A," a
"Condition Report" shall be completed by City and RRAAC and Lender, and such "Condition
Report" shall accurately document the condition of the referenced artwork as it arrived on site.
E. Any noticeable damage to the artwork described in Exhibit "A," incurred while
such artwork is on display on City -owned property, shall be reported by City and/or RRAAC in
writing and by telephone to Lender within five (5) business days of actual discovery of such
damage.
F. City, in its sole and unfettered discretion, shall have the right to request that
Lender remove any damaged piece of artwork promptly. Any associated costs shall be the sole
responsibility of Lender. Any restoration and/or repair of the artwork described in Exhibit "A"
shall be at City's sole and unfettered discretion, and shall not be undertaken without the written
authorization of Lender.
3. TRANSPORTATION AND INSTALLATION
A. Lender shall be solely responsible for transportation of the artwork described in
Exhibit "A" to and from the property for display, and further Lender shall be solely responsible
for installation and removal of the referenced artwork. All costs therefor shall be the sole
responsibility of Lender. Lender expressly acknowledges and agrees to restore City's property
on which the referenced artwork was displayed to the condition in which it existed immediately
prior to display of the referenced artwork.
B. City's responsibility shall be limited to coordination of the installation of the
referenced artwork with the receiving City agency.
C. Lender shall have the obligation to coordinate and install the artwork described in
Exhibit "A" to the specifications of City and in a manner approved by City. In the event Lender
installs the referenced artwork in a manner deemed unsatisfactory by City, then and in that event
Lender shall be responsible for promptly re -installing or removing the referenced artwork to
City's satisfaction. Any associated costs shall be the sole responsibility of Lender.
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4. EFFECTIVE DATE; TERM
A. Fhis Agreement shall be effective when properly executed by all parties, and shall
terminate on eP r 2 2 , 20/2 , unless terminated sooner pursuant to Section 6
hereof.
5. PAYMENT
A. All parties expressly acknowledge and agree that City shall have no responsibility
whatsoever for payment for the artwork described in Exhibit "A" or for anything associated
therewith. RRAAC and Lender shall be responsible for negotiating payment terms and
conditions for use of the referenced artwork.
6. TERMINATION
A. Lender shall cause the artwork described in Exhibit "A" to remain on the
referenced City -owned property for the time specified herein in Section 4, but City (through its
Director of Parks and Recreation) may at any time during the referenced period direct Lender to
remove the referenced artwork. In that event, this Agreement shall terminate.
B. Upon termination of this Agreement, Lender shall promptly remove the artwork
described in Exhibit "A," along with all structures necessary for and/or attendant to its display, in
accordance with Section 3 hereof.
7. RETURN OF ARTWORK
A. In the event that legal ownership of the artwork described in Exhibit "A" changes
during the term of this Agreement, whether by death, insolvency, legal sale, or legal gift, then
and in that event the new owner may seek return of the referenced artwork by documenting
his/her/its legal right to receive the referenced artwork by proof satisfactory to City. The
referenced artwork will only be returned to Lender or to a person who has complied with all
provisions of this Section 7, Paragraph A.
B. Upon return of the artwork described in Exhibit "A," City and RRAAC shall issue
a final "Condition Report and Return of Art Receipt" to be signed by Lender prior to or at the
time of removal of the referenced artwork. Such final report shall constitute proof of the return
of the referenced artwork by City to Lender in acceptable condition. In the event Lender fails or
refuses to collect the referenced artwork and/or fails or refuses to sign the final report within
fifteen (15) days of notice that such final report is available for signature, then and in that event
the condition of the referenced artwork, as noted on the final report and as returned, shall be
automatically deemed to be acceptable to Lender, without further action required on the part of
City, and any subsequent claims made by Lender shall not be valid or honored.
C. City shall have the absolute right to demand removal of the artwork described in
Exhibit "A" upon termination of this Agreement under Section 6 hereof. In the event City is
unable, after making reasonable effort, to secure removal of the referenced artwork by Lender or
a new owner as delineated in Section 7, Paragraph A, within sixty (60) days after termination
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date, then and in that event City shall have the absolute right to remove the referenced artwork,
place same in storage, and charge any and all associated costs including but not limited to
removal fees, transportation fees, storage fees, and insurance costs, and City shall further have
the right to place and enforce liens for such fees and costs.
D. At the conclusion of the sixty (60) day period referenced in Section 7, Paragraph
C, if Lender has failed to pay all charges and satisfactorily arrange for the removal of the artwork
described in Exhibit "A," then and in that event Lender hereby expressly acknowledges and
agrees that ownership of the referenced artwork shall immediately pass to City without any
further requirement of payment or abandonment proceedings.
E. In the event the artwork described in Exhibit "A" is at any time voluntarily
offered as a gift to City, and if City accepts such offer of a gift, then and in that event Lender
shall execute a valid Deed of Gift to City. At the time of recordation of such Deed of Gift, this
Agreement shall terminate.
8. COPYRIGHT; REPRODUCTION RIGHTS
A. As to the artwork described in Exhibit "A," Lender hereby expressly reserves
every right available to him/her/it under the Federal Copyright Act.
B. Except as otherwise delineated in Section 8 hereof, City shall not make any
commercial use of the design of the referenced artwork without Lender's written consent.
C. Lender grants City an unrestricted license to use photographic reproductions of
the referenced artwork in advertising brochures, media publicity, promotion of City activities,
catalogues, site guides, books, and publications for noncommercial purposes. In the event of
such reproductions, the parties shall use best efforts to secure credits listing Lender as the creator
of the referenced artwork and owner of its copyright, and RRAAC as the entity which
commissioned the referenced artwork.
9. CONFLICT OF INTEREST
A. Lender warrants that he/she/it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with this Agreement.
Lender further agrees that, in the performance of this Agreement, no persons having any such
interests shall be employed.
10. ASSIGNMENT
A. Lender shall not assign or transfer any rights, privileges, obligations, or other interest
under this Agreement, including any claims for money due, without the prior written consent of
City and RRAAC.
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11. RELEASE
A. Lender, upon entering into this Agreement, releases City, its officers and employees,
from all liabilities, claims, and obligations whatsoever arising from or under this Agreement. Lender
agrees not to purport to bind City to any obligation not assumed herein by City unless Lender has
express written authority herein to do so, and then only within the strict limits of that authority.
12. INDEMNIFICATION
A. Lender does hereby indemnify, hold harmless and defend City from all losses,
damages, claims or judgments on account of any suit, judgment, execution, claim, action, or
demand whatsoever arising from Lender's performance under this Agreement, as well as the
performance of Lender's employees, agents, representatives and subcontractors, including payments
of all attorney's fees and costs.
13. THIRD PARTY BENEFICIARIES
A. By entering into this Agreement, the parties do not intend to create any right, title,
or interest in or for the benefit of any person other than City, RRAAC, and Lender. No person
shall claim any right, title or interest under this Agreement or seek to enforce this Agreement as a
third party beneficiary of this Agreement.
14. APPLICABLE LAW; CHOICE OF LAW; VENUE
A. Lender shall abide by all applicable federal and state laws and regulations, and all
ordinances, rules and regulations of the City of Round Rock. In any action, suit or legal dispute
arising from this Agreement, Lender agrees that the laws of the State of Texas shall govern. The
parties agree that any action or suit arising from this Agreement shall be commenced in Texas. Any
action or suit commenced in the courts of the State of Texas shall be brought in Williamson County.
15. AMENDMENTS
A. This agreement shall not be altered, changed or modified except by an amendment
in writing executed by all parties hereto.
16. ENTIRE AGREEMENT
A. This Agreement incorporates all the agreements, covenants and understandings
between the parties hereto concerning the services to be performed hereunder, and all such
agreements, covenants and understandings have been merged into this Agreement. This Agreement
expresses the entire Agreement and understanding between the parties with respect to its subject
matter. No prior agreement or understanding, verbal or otherwise, of the parties or their agents shall
be valid or enforceable unless embodied in this Agreement.
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17. SEVERABILITY
A. In case any one or more of the provisions contained in this Agreement or any
application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained herein and any other application thereof shall
not in any way be affected or impaired thereby.
18. NOTICES
A. Any notices required to be given under this Agreement shall be in writing and
served by personal delivery or by mail, postage prepaid, to the parties at the following addresses:
CITY OF ROUND ROCK
City Manager
221 East Main Street
Round Rock, TX 78664
ROUND ROCK AREA ARTS COUNCIL
Board of Directors
Business Center Complex
231 East Main Street
Round Rock, TX 78664
ARTIST and LENDER
Carry /all am
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
below.
CITY OF
By:
ND ROC
Steve Norwood City anager
Date Signed: 4� 7 47
FOR CITY, ATTEST
By:
Sara L. White, City Secretary
FOR CIT PPROVED AS TO FORM
By:
Steph L. Sheets, City Attorney
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ROUND ROCK ' . A ARTS CO CIL
BY:.. -- /5ty"
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Date Signed:
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